[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 4087 Introduced in Senate (IS)]

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118th CONGRESS
  2d Session
                                S. 4087

 To amend titles XVIII and XIX of the Social Security Act to prohibit 
   skilled nursing facilities and nursing facilities from using pre-
   dispute arbitration agreements with respect to residents of those 
  facilities under the Medicare and Medicaid programs, and for other 
                               purposes.


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                   IN THE SENATE OF THE UNITED STATES

                             April 9, 2024

 Mr. Blumenthal (for himself and Ms. Hirono) introduced the following 
  bill; which was read twice and referred to the Committee on Finance

_______________________________________________________________________

                                 A BILL


 
 To amend titles XVIII and XIX of the Social Security Act to prohibit 
   skilled nursing facilities and nursing facilities from using pre-
   dispute arbitration agreements with respect to residents of those 
  facilities under the Medicare and Medicaid programs, and for other 
                               purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Fairness in Nursing Home Arbitration 
Act''.

SEC. 2. PROHIBITING PRE-DISPUTE ARBITRATION AGREEMENTS.

    (a) Medicare.--Section 1819(c) of the Social Security Act (42 
U.S.C. 1395i-3(c)) is amended by adding at the end the following new 
paragraph:
            ``(7) Prohibition on use of pre-dispute arbitration 
        agreements.--
                    ``(A) In general.--A skilled nursing facility may 
                not require, solicit, accept, or move to enforce a pre-
                dispute arbitration agreement from or on behalf of any 
                resident, whether the agreement is made before, during, 
                or after the resident's admission to the facility.
                    ``(B) Application.--This paragraph shall apply to 
                the skilled nursing facility and to any other business 
                or person providing or responsible for providing 
                skilled nursing services to the resident.
                    ``(C) No validity or enforcement.--A pre-dispute 
                arbitration agreement shall not be valid or 
                specifically enforceable against a resident or former 
                resident of a skilled nursing facility, without regard 
                to whether the agreement was made prior to or after the 
                effective date of this paragraph.
                    ``(D) Definition of pre-dispute arbitration 
                agreement.--In this paragraph, the term `pre-dispute 
                arbitration agreement' means any agreement to arbitrate 
                a dispute when the dispute has arisen after such 
                agreement has been made.
                    ``(E) Judicial review.--A determination as to 
                whether and how this paragraph applies to an 
                arbitration agreement shall be determined under Federal 
                law by a court of competent jurisdiction, rather than 
                an arbitrator, without regard to whether the party 
                opposing arbitration challenges such agreement 
                specifically or in conjunction with any other term of 
                the contract containing such agreement.''.
    (b) Medicaid.--
            (1) Home and community-based services and home health care 
        services.--Section 1915 of the Social Security Act (42 U.S.C. 
        1396n) is amended by adding at the end the following new 
        subsection:
    ``(m) Prohibiting Pre-Dispute Arbitration Agreements.--
            ``(1) In general.--For home and community-based services or 
        home health care services provided under a waiver under this 
        section, section 1902(a)(10)(D), or any other provision 
        authorizing the provision of home and community-based services 
        or home health care services under this title, the provider of 
        such services (and any employee, agent, related entity, or 
        affiliate of such provider) may not require, solicit, accept, 
        or move to enforce a pre-dispute arbitration agreement from or 
        on behalf of any individual receiving such services, whether 
        the agreement is made before, during, or after the first date 
        on which services are received. A pre-dispute arbitration 
        agreement between such a provider (or entity or person) and an 
        individual receiving services (or who formerly received 
        services) shall not be valid or enforceable, without regard to 
        whether such agreement was made prior to the effective date of 
        this subsection.
            ``(2) Definition of pre-dispute arbitration agreement.--The 
        term `pre-dispute arbitration agreement' means any agreement to 
        arbitrate a dispute when the dispute has arisen after such 
        agreement has been made.
            ``(3) Judicial review.--A determination as to whether and 
        how this subsection applies to an arbitration agreement shall 
        be determined under Federal law by a court of competent 
        jurisdiction, rather than an arbitrator, without regard to 
        whether the party opposing arbitration challenges such 
        agreement specifically or in conjunction with any other term of 
        the contract containing such agreement.''.
            (2) Nursing facilities.--Section 1919(c) of the Social 
        Security Act (42 U.S.C. 1396r(c)) is amended by adding at the 
        end the following new paragraph:
            ``(9) Prohibition on use of pre-dispute arbitration 
        agreements.--
                    ``(A) In general.--A nursing facility may not 
                require, solicit, accept, or move to enforce a pre-
                dispute arbitration agreement from or on behalf of any 
                resident, whether the agreement is made before, during, 
                or after the resident's admission to the facility.
                    ``(B) Application.--This paragraph shall apply to 
                the nursing facility and to any other business or 
                person providing or responsible for providing nursing 
                services to the resident.
                    ``(C) No validity or enforcement.--A pre-dispute 
                arbitration agreement shall not be valid or 
                specifically enforceable against a resident or former 
                resident of a nursing facility, without regard to 
                whether the agreement was made prior to or after the 
                effective date of this paragraph.
                    ``(D) Definition of pre-dispute arbitration 
                agreement.--In this paragraph, the term `pre-dispute 
                arbitration agreement' means any agreement to arbitrate 
                a dispute when the dispute has arisen after such 
                agreement has been made.
                    ``(E) Judicial review.--A determination as to 
                whether and how this paragraph applies to an 
                arbitration agreement shall be determined under Federal 
                law by a court of competent jurisdiction, rather than 
                an arbitrator, without regard to whether the party 
                opposing arbitration challenges such agreement 
                specifically or in conjunction with any other term of 
                the contract containing such agreement.''.

SEC. 3. EFFECTIVE DATE; APPLICATION OF AMENDMENTS.

    This Act, and the amendments made by this Act, shall take effect on 
the date of the enactment of this Act.
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